tunney, john a - decision - DRB - Disciplinary Review Board of the

SUPREME COURT OF NEW JERSEY
Disciplinary Review Board
Docket No. DRB 03-350
IN THE MATTER OF
JOHN A. TUNNEY
AN ATI’ORNEY AT LAW
Decision
Argued:
January 29, 2004
Decided:
March 26, 2004
Timothy J. Little appeared on behalf of the District VIII Ethics Committee.
Pamela L. Brause appeared on behalf of respondent.
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New
Jersey.
This matter was before us based on a recommendation for discipline filed by Special
Master John M. Boyle. Four complaints, plus an amended complaint, charged respondent with
conduct that violated numerous Rules of Professional Conduct in seven client matters:
1. The Hutt matter - RPC 1.4 (failure to keep a client reasonably informed about the
status of the matter), RPC 4.1(a)(1) (false statement to a third person), and RPC 8.4 (conduct
involving dishonesty, fraud, deceit or misrepresentation).
2. The Bojko matter - RPC 1.1 (gross neglect), RPC 1.3 (lack of diligence), RPC 1.4(a),
RPC 1.15 (breach of an escrow agreement), Rule 1:20-3(g)(4) [more appropriately, a violation of
RPC 8.1(b) (failure to cooperate with disciplinary authorities)], RPC 8.4(a) (violate or attempt to
violate the Rules of Professional Conduct), and RPC 8.4(c).
3. The Tobe matter - RPC 8.4(b) (criminal act) and RPC 8.4(c).
4. The Castaneda matter - RPC 1.1(a), RPC 1.3, RPC 1.4(a) and (b) (failure to explain a
matter to the extent reasonably necessary to permit a client to make an informed decision about
the representation), RPC 1.15(b) (failure to safeguard funds), RPC 3.2 (failure to expedite
litigation), RPC 8.4(a), RPC 8.4(c), and RPC 8.4(d) (conduct prejudicial to the administration of
justice) (count one) and RPC 1.1(a), RPC 1.3, RPC 1.4(a) and (b), RPC 1.15Co), RPC 3.2, RPC
8.4(a), RPC 8.4(c), and RPC 8.4(d) (count two).
5. The Vonderputten matter - RPC 1.1(a), RPC 1.3, RPC 1.4(a) and (b), RPC 1.15(b),
RPC 3.2, and RPC 8.4(a), (c), and (d).
6. The Sherman matter RPC 1.1(a), RPC 1.4, and Rule 1:20-3(g)(4) [more
appropriately, a violation of RPC 8. l(b)].
7. The Liscinski matter - RPC 1.1(a), RPC 1.3, RPC 1.4, RPC 8.1(b) and Rule 1:203(g)(4) [more appropriately, a violation of RPC 8. l(b)].
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Respondent was admitted to the New Jersey bar in 1988. He received a reprimand in 2003
when, in three matters for the same client, he was found guilty of gross neglect, lack of diligence,
failure to communicate with a client, failure to surrender a client’s papers and property, failure to
cooperate with disciplinary authorities, and conduct involving dishonesty, fraud, deceit or
misrepresentation, and in another matter, he failed to turn over a client’s file upon termination of
the representation and failed to cooperate with disciplinary authorities. The Court also required
respondent to submit proof of fitness to practice law within thirty days of the reprimand order. In
re Tunney, 176 N.J. 272 (2003).
For ease of reference, our determination immediately follows the factual recitation and the
special master’s finding in each matter.
The Hutt Matter - District Docket No. VIII-01-023E
In 1994, respondent was retained to represent Ronald Jacques, Jr., a minor, in a personal
injury lawsuit against multiple defendants. Respondent was successor counsel to David Hutt, the
grievant. On July 15, 1994, Hutt turned over his file in the Jacques matter to respondent and
confirmed in a letter an agreement whereby respondent would distribute to Hutt one-third of any
legal fees that he recovered. Respondent signed that letter on August 29, 1994. On September 1,
1998, about four years later, respondent settled the litigation. Despite Hutt’s repeated inquiries to
respondent about the status of the lawsuit, respondent failed to disclose that the matter had been
settled. Although respondent sent Hutt a letter dated September 24, 1998, stating that the matter
was "presently pending settlement" and that he would advise Hutt when the case was resolved,
respondent failed to notify Hutt when he received the settlement proceeds in September and
October 1998.~ On October 13 and October 29, 1998, respondent disbursed the settlement
proceeds to his client and himself. He did not forward any legal fees to Hutt. Almost one year
later, in August 1999, respondent finally disclosed to Hutt that the matter had been settled and
agreed to provide the settlement documents and Hutt’s portion of the fees. Respondent, however,
did not do so.
On January 20, 2000, Hutt sent to respondent a draft complaint against him for breach of
contract, advising him that the complaint would be filed unless respondent provided a copy of
the settlement agreement and payment of Hutt’s legal fees. Respondent did not reply. After Hutt
sent respondent an additional letter dated February 24, 2000, which respondent similarly ignored,
Hutt filed the complaint against respondent, who was served on April 10, 2000. During this time,
respondent and Hutt represented parties in an unrelated real estate transaction. At the closing,
respondent represented to Hutt that he would submit copies of the settlement documents and
Hutt’s share of the legal fees within several days. Again, respondent failed to honor his
representation.
Upon respondent’s failure to file an answer to the complaint, a default was entered
against him. Because Hutt did not know the amount of the Jacques settlement, he could not
establish the amount of his damages, an element necessary to secure a default judgment. Hutt
tried without success to obtain the settlement information from the court. As it turned out, by the
Because two defendants contributed to the settlement, respondent received the settlement checks
on two different dates.
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time the case had been settled, respondent’s client was no longer a minor and the settlement was
not required to be placed on the record. Hutt then served respondent with a subpoena duces
tecum, requiring him to appear at Hutt’s law office on June 28, 2001, and to produce records
from the Jacques matter, including settlement documents. Respondent did not appear. After Hurt
filed the ethics grievance, respondent provided Hutt with the settlement documents and Hutt’s
share of the legal fees.
At the ethics hearing, Hutt testified that, to his knowledge, respondent had not
misrepresented the status of the Jacques matter to him.
For his part, respondent claimed that at the time of the Hutt matter, he was suffering from
severe depression. After he met with his attorney in connection with the prior ethics matter in
which he ultimately received a reprimand, respondent began treating with Joseph S. Vetrano, a
psychiatrist. According to respondent, the depression affected his ability to practice law in that he
was not able to perform everyday tasks, such as returning telephone calls.2 Respondent denied that
he had misrepresented the status of the matter to Hutt, contending that until he had received the
settlement checks and they had cleared his trust account, he could not have disbursed any funds.
Respondent explained that, despite his intention to disburse Hutt’s share of the legal fees,
he was overwhelmed by the prospect of reviewing the file, locating his agreement with Hutt, and
issuing the check. Respondent contended that, at the time, that task seemed monumental.
Evidence of respondent’s depression was offered in mitigation of all of the charges and will be
discussed below.
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At the ethics hearing, the presenter withdrew the charge of a violation of RPC 1.4,
conceding that respondent had no duty to keep Hurt, who was not a client, informed about the
status of the case.
The special master dismissed all of the charges in the Hutt matter. As noted above, the
presenter withdrew the RPC 1.4 charge. The special master found that respondent had not
misrepresented the status of the litigation to Hutt and that the dispute between the attorneys was of
a civil nature resolved by the lawsuit that Hutt filed against respondent.
The charge that respondent failed to communicate with a client was properly dismissed
because, as conceded by the presenter, Hurt was not a client. There is clear and convincing
evidence, however, that respondent’s conduct was unethical in other respects. Although respondent
settled the Jacques matter in September 1998, and received both settlement checks by October
1998, he failed to promptly notify Hutt. It was not until almost one year later, in August 1999, that
Hutt learned of the settlement. Respondent’s silence in this regard amounted to a
misrepresentation. "In some situations, silence can be no less a misrepresentation than words."
Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 347 (1984). Moreover, respondent violated RPC
8.4(c) when he misrepresented to Hutt at a real estate closing in early 2000 that, within a matter
of days, he would submit copies of the settlement documents and Hutt’s share of the legal fees.
We dismissed as cumulative of the RPC 8.4(c) violation the charge that respondent violated RPC
4.1 (a)(1) (false statements to a third person).
In addition, respondent’s failure to notify Hutt of his receipt of the settlement funds and
to distribute the funds to Hutt violated RPC 1.15(b) (failure to promptly notify a third party of
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receipt of funds to which the party is entitled and failure to deliver funds to which a third party is
entitled). Although respondent was not specifically charged with a violation RPC 1.15(b), the
record developed below contains clear and convincing evidence of a violation of that RPC.
Respondent did not object to the admission of such evidence in the record. In light of the
foregoing, we deem the complaint amended to conform to the proofs. Rule 4:9-2; In re Logan, 70
N.J. 222, 232 (1976).
The Bojko Matter - District Docket No. VIII-01-048E
On October 31, 2000, respondent represented Jerry Bojko in the purchase of real estate.
As a result of problems discovered during a final inspection of the property, Bojko and the
sellers entered into an escrow agreement requiring respondent to retain $1,250 in escrow to be
used to address duct work, plumbing repairs, and debris removal. In November 2000, the
plumbing was satisfactorily repaired and $500 held in escrow for that purpose was disbursed.
Although in November 2000, February 2001, and May 2001, several letters were exchanged
between respondent and the sellers’ attorney, the duct work and removal of the debris from the
property were not resolved. Bojko wanted the duct work to be performed by a professional,’
while the sellers wanted to perform the work themselves. In addition, although Bojko wanted
advance notice before anyone entered his yard to remove the debris, the sellers preferred to
arrive unannounced. Bojko explained that because he had had polio and lung cancer, he was not
able to perform the repairs himself. Respondent claimed that Bojko had obtained an estimate for
the duct work that included unrelated electrical work such that it was not possible to discern the
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cost of the duct work alone. In turn, Bojko testified that the duct work alone would not have
solved the problem and that the electrical work was part of the duct repairs. As of the date of the
ethics hearing, the repair and debris removal issues had not been resolved and respondent
continued to hold the funds in his escrow account.
According to Bojko, respondent agreed that he would file a complaint against the sellers
for their failure to abide by the escrow agreement. Respondent never filed the lawsuit.
Respondent denied representing that he would file a complaint, contending that if litigation had
been filed, he would have been a witness as to the terms of the escrow agreement. Respondent
conceded that although he could have filed an interpleader action and deposited the funds with
th~ court, he declined to do so because he would not have been reimbursed the filing fee.
On May 17, 2001, Bojko sent respondent a letter stating that despite respondent’s
representation, at a meeting on April 11, 2001, that he would call Bojko within two weeks,
respondent had failed to contact him. Bojko further complained that he had received "zero calls"
from respondent during the previous six months. Similarly, in a letter to re.spondent dated
September 19, 2001, Bojko contended that (1) court personnel in Middlesex County had no
record of any lawsuit filed by respondent against the seller; (2) respondent repeatedly failed to
appear at his office for appointments with Bojko; and (3) respondent had called Bojko only one
time in ten months. Respondent did not reply to Bojko’s letter.
At the ethics hearing, Bojko testified that respondent appeared for only two of the twelve
appointments that had been scheduled at respondent’s office and that although he had telephoned
respondent between twenty-four and thirty times, respondent had called him only once.
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According to respondent, however, he had met with Bojko on five or six occasions after the real
estate closing and had spoken with him by telephone another six times.
The special master found that respondent’s failure to resolve the escrow dispute over a
two and one-half year period, to file a lawsuit, or to deposit the funds in court constituted gross
neglect and a lack of diligence. The special master also determined that respondent had failed to
keep Bojko informed about the status of the matter, rejecting respondent’s testimony that he had
called Bojko six times. The special master further found that respondent misrepresented to Bojko
that he would file a lawsuit against the sellers. The special master, thus, found violations of RPC
1.1(a), RPC 1.3, RPC 1.4(a), and RPC 8.4(c). The special master dismissed the charges that
respondent violated RPC 8.4(a) and RPC 1.15, noting that the funds were held in the escrow
account at all times.
The special master’s finding that respondent’s conduct was unethical is supported by
clear and convincing evidence. Respondent permitted the escrow dispute to linger for several
years, without taking any steps to resolve it. Although the amount of money in dispute was not
substantial, as escrow agent and Bojko’s attorney, respondent was obligated to take affirmative
steps to settle the matter. His failure to do so amounted to a lack of diligence. Because we find
that respondent’s inattention was simple neglect, we dismiss the gross neglect charge. No dire
consequences, such as the loss of a cause of action, resulted from respondent’s failure to act.
Respondent failed to keep Bojko informed of the status of the matter and failed to comply
with his reasonable requests for information. According to Bojko, respondent failed to keep
appointments and failed to return his telephone calls. Bojko’s letters dated May 17 and
September 19, 2001, document his difficulty in contacting respondent. If Bojko’s complaints had
been inaccurate, one would expect respondent to have disputed them. He never replied to those
letters.
Similarly, although respondent denied promising to file a lawsuit against the sellers,
respondent ignored Bojko’s letter in which he stated that he had discovered from court staff that
respondent had never instituted litigation. The record provides no reason to doubt Bojko’s
statement that respondent had promised to institute litigation. Again, if respondent had not made
that commitment, he should have disagreed with Bojko in writing. His failure to dispute Bojko’s
letter confirms Bojko’s testimony that respondent had promised that he would file the lawsuit.
The special master properly dismissed the charges that respondent violated RPC 1.15 and
RPC 8.4(a). Because the record shows that respondent retained the escrow funds intact, he did
not fail to safeguard them.
The Tobe Matter - District Docket No. ¥III-01-058E
The presenter moved to dismiss this complaint because the grievant did not appear at the
ethics hearing. According to the complaint, a check that respondent had issued was returned for
insufficient funds. After respondent satisfied the check, the grievant was no longer interested in
pursuing the grievance. The special master granted the presenter’s motion and dismissed the
complaint. We concur with that result.
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The Castaneda Matter - District Docket No. VIII-02-004E
Respondent represented Linda Castaneda in two litigation matters. He had previously
represented her and some of her family members. On September 3, 1997, Castaneda consulted
respondent about a potential medical malpractice action against Dr. Paul Goldberg. In 1995, after
Dr. Goldberg had removed a mole from Castaneda’s chest, a keloid scar developed and
continued to grow. Castaneda consulted another doctor, who suggested that she contact an
attorney. Respondent and Castaneda signed a fee agreement providing that respondent would
represent Castaneda in a matter against Dr. Goldberg. Although the agreement is not dated,
Castaneda’s testimony that it was signed on September 3, 1997 was not disputed. Castaneda also
signed authorizations permitting respondent to obtain her medical records.
Although respondent agreed that he had been retained by Castaneda, he claimed that
several days later, on September 8, 1997, she left a message with his staff indicating that she no
longer wanted to proceed with the matter against Dr. Goldberg. Castaneda denied respondent’s
claim. The ethics hearing in this matter focused on whether respondent continued to represent
Castaneda against Dr. Goldberg.
According to Castaneda, respondent had indicated that he would send her medical
records to a doctor in Philadelphia, who would be retained as an expert witness. Castaneda
testified that respondent was planning to retain the expert witness with funds that he had
withheld from a prior settlement that he had obtained for her. She stated that in accordance with
respondent’s request, she also prepared and submitted to him a history of her treatment by Dr.
Goldberg. The eighteen-page report, dated November 3, 1999, was addressed to respondent and
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related Castaneda’s experience with Dr. Goldberg and the effect that his treatment had on her
life, including her loss of self-esteem caused by the disfiguring scar. Castaneda claimed that she
had provided respondent with pictures and a videotape relating to her surgery. She asserted that
respondent frequently assured her that the malpractice case was proceeding and that her case had
been reviewed by doctors in Pennsylvania.
Castaneda contended that respondent frequently canceled appointments with her. The
record included copies of Castaneda’s calendars on which she had noted appointments with
respondent from 1997 through 2001. Castaneda testified that on December 27, 2001, she waited
in respondent’s office for three hours, and although his car was in the parking lot, respondent
refused to see her.
Castaneda claimed that respondent was never available by telephone and never returned
her telephone calls. Also submitted into evidence were copies of Castaneda’s telephone bills
showing telephone calls placed to respondent’s office for various months, including August,
September and December of 2001 and March 2002. Castaneda stated that after she began to lose
confidence in respondent due to his failure to communicate with her, she contacted another
attorney, Mark Lesser, who advised her that because the statute of limitations had expired, she
was precluded from suing Dr. Goldberg. She asserted that she provided Lesser with the identical
history that she had given to respondent, except that she had changed the name on the report
from respondent’s to Lesser’s.
Castaneda denied that she had called tespondent’s office and indicated that she did not
want to pursue the medical malpractice case. Her husband, Isaac Castaneda, testified that
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Castaneda had never expressed an interest in discontinuing the matter against Dr. Goldberg and
that she had never told him that she had so informed respondent. He stated that he had
accompanied his wife to some of her appointments with respondent at which they discussed the
Goldberg case. Although he recalled giving respondent the report dated November 3, 1999, he
could not recall the date.
On cross-examination, Castaneda conceded that she had retained the original November
3, 1999 report addressed to respondent, claiming that when she had brought it to respondent’s
office, respondent’s secretary made photocopies and returned the original to her, instead of
giving it to respondent. Castaneda claimed that, although as of November 3, 1999, she believed
that respondent continued to represent her against Dr. Goldberg, she submitted the same report to
another attorney, Mark Lesser, to obtain another opinion because respondent was not
communicating with her at that time.
Patricia Tracy, respondent’s real estate paralegal, testified that on September 8, 1997, she
took a message from Castaneda in which she stated that she was not going to proceed against Dr.
Goldberg. A copy of the message attached to a memorandum from respondgnt was introduced
into evidence. The handwritten memorandum to the file from respondent stated "Confirmed with
Linda. Open & close file." The file did not contain a letter confirming in writing to Castaneda
that she no longer wished to pursue the case.
For his part, respondent testified that, after retaining him, Castaneda had notified his
office that she did not want to proceed with the lawsuit against Dr. Goldberg because he did not
have malpractice insurance. Respondent stated that he contacted Castaneda because he did not
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want to rely on his secretary’s message. He admitted that he had not confirmed the conversation
with Castaneda in writing.
Respondent denied requesting the November 3, 1999 report from Castaneda and stated
that he had never seen it until the ethics hearing. According to respondent, Castaneda had
brought him the November 3, 1999 report addressed to Lesser and had asked him to review it for
her because he had an ongoing relationship with the family. Respondent noted that the report
provided, in part: "Dr. Carniol referred me to an attorney, Marc Lesser, in Livingston, New
Jersey, due that I didn’t know who to turn to."
Respondent testified that Castaneda filed the grievance after her brother had also filed a
grievance against him.3
As to the second litigation matter, on June 27, 1997, Castaneda sprained her ankle after
falling on a sidewalk. Respondent filed a complaint against the property owner, Catalina
Deocamp4, and various public entities. Castaneda was awarded $15,000 in an arbitration
proceeding. According to Castaneda, on October 17, 2000, respondent told her that her case was
going to settle within three months. However, in August 2001, Castaneda contacted the court
clerk’s office and learned that the matter had been dismissed with prejudice against Deocamp on
August 29, 2000. Respondent did not dispute that he had not notified Castaneda of motions for
summary judgment filed by Deocamp and the public entities, or of the orders dated December
Castaneda’s brother was the grievant in the ethics matter in which respondent received a
reprimand.
The record also refers to Deocamp as "Deocampo" and "De Ocamp."
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17, 1999, March 3, 2000, and April 28, 2000, respectively, granting the motions. Respondent
also conceded that he had not filed opposition to any of the summary judgment motions and that
he had not provided Castaneda with copies of the orders, which she obtained from the clerk’s
office. Castaneda stated that when she was able to talk to respondent, he told her that the case
was "running smoothly."
Castaneda conceded that respondent had informed her that at the arbitration proceeding,
the panel had determined that the public entities were not responsible and that although the
homeowner was responsible, Deocamp did not have homeowner’s insurance. According to
respondent, Deocamp was dismissed from the case because a property owner does not have a
duty to maintain non-commercial property. He claimed that even if he had opposed Deocamp’s
summary judgment motion, it would have been granted.
At the hearing, the presenter withdrew the charge that respondent had violated RPC
1.15(b), stating that there was no evidence that he had failed to safeguard property.
The special master dismissed the charges in the Goldberg matter, finding that Castaneda
had attempted to introduce "tampered" evidence, referring to the November 3, 1999 report.
With respect to the Deocamp matter, the special master found respondent guilty of gross
neglect, lack of diligence, failure to keep a client informed about the status of the matter, failure
to explain a matter sufficiently to permit a client to make an informed decision about the
representation, and conduct prejudicial to the administration of justice. The special master,
noting that the presenter had withdrawn the charge that respondent had failed to safeguard
property, dismissed the charges that respondent failed to expedite litigation, attempted to violate
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the Rules of Professional Conduct, and engaged in conduct involving dishonesty, fraud, deceit or
misrepresentation.
In the Goldberg matter, there was conflicting evidence about respondent’s representation
of Castaneda. It is undisputed that respondent and Castaneda signed a retainer agreement on
September 3, 1997. Respondent contended that five days later, on September 8, 1997, Castaneda
telephoned his office and told his paralegal, Patricia Tracy, that she did not want to proceed with
the matter. A photocopy of that message and respondent’s memorandum to the file confirming
the conversation with Castaneda were introduced into evidence. Tracy, too, testified that
Castaneda had indicated that she did not wish to pursue the malpractice complaint against Dr.
Goldberg.
Castaneda, however, denied that she had told respondent that she did not want to proceed
with the malpractice matter. Her husband testified that she had never told him that she wanted to
discontinue that matter. According to Castaneda, she continuously met with respondent and
spoke to him by telephone about the Goldberg case, until he began to cancel appointments and
refuse her telephone calls. Castaneda claimed that she then sought a second opinion from Lesser,
an attorney who informed her that the statute of limitations had expired.
The telephone records indicate that Castaneda continued to call respondent, even after
August 2001, when she had discovered that the Deocamp matter had been dismissed. These
records, showing telephone calls to respondent in September and December 2001 and March
2002, support her claim that respondent continued to represent her in the Goldberg matter,
because he did not represent her in any other matter at that time. On the other hand, respondent
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submitted both documentary evidence and Tracy’s testimony in support of his claim that
Castaneda had instructed him not to proceed with the matter. Moreover, the reports dated
November 3, 1999, to respondent and Lesser are identical, except for the addressees contained
on the first and last pages. The report addressed to Lesser (Exhibit C-4) contains the same type
throughout the eighteen-page document. The report addressed to respondent (Exhibits C-3 and
R-l), however, contains a different font on the first and last pages, indicating that it had been
prepared after the Lesser report, and that those pages were changed to substitute respondent’s
name for Lesser’s.
Based on the above, we are unable to find clear and convincing evidence to support a
finding of ethics violations in the Goldberg matter. Although respondent should have confirmed
in writing Castaneda’s instructions to him, his failure to do so did not amount to an ethics
violation.
As to the Deocamp matter, respondent admitted that he had not kept Castaneda informed
about her case, failing to tell her that summary judgment motions had been filed and granted.
Respondent, thus, violated RPC 1.4(a) and (b). Respondent’s failure to oppose the summary
judgment motions, permitting the matter to be dismissed, constituted gross neglect and a lack of
diligence. Although the special master found that respondent violated RPC 8.4(d), there is no
evidence that respondent engaged in conduct prejudicial to the administration of justice.
The presenter properly withdrew the charge that respondent failed to safeguard property.
We agree with the special master’s recommendation that the charges that respondent failed to
expedite litigation and attempted to violate the Rules of Professional Conduct should be
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dismissed. However, the record supports the charge that respondent violated RPC 8.4(c).
Castaneda’s testimony that respondent had told her that the Deocamp matter was proceeding
smoothly was not disputed. Respondent, thus, misrepresented the status of the matter, in
violation of RPC 8.4(c). Moreover, his failure to advise her of the dismissal of the complaint
constitutes a misrepresentation by silence.
The Vonderputten Matter - District Docket No. VIII-02-028E
Because respondent stipulated to the facts in this matter, no ethics hearing took place.
Respondent admitted to certain RPC violations and the presenter withdrew the remaining
charges.
Elio and Carmen Vonderputten retained respondent to represent them in a personal injury
action arising from a motor vehicle accident occurring on April 8, 1996. Respondent failed to
communicate with his clients, canceled appointments, refused their telephone calls, and failed to
return their telephone messages. Although respondent filed a complaint on behalf of the
Vonderputtens, the complaint was dismissed on March 24, 1999, for lack of prosecution. On
May 28, 1999, respondent’s motion to restore the matter was denied without prejudice to renewal
after valid service on the defendants. Respondent never filed another petition to restore. He never
informed the Vonderputtens that their case had been dismissed. Instead, as late as December
2001, more than two and one-half years after the dismissal, respondent continued to assure his
clients that the matter would be settled within several months.
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Respondent admitted that he had violated RPC 1.1(a), RPC 1.3, and RPC 1.4(a) and (b).
The presenter withdrew the charges that respondent violated RPC 1.15(b), RPC 3.2, and RPC
8.4(a), (b) and (c).
The special master accepted the stipulation, finding that respondent violated RPC 1. l(a),
RPC 1.3, and RPC 1.4(a) and (b). He recommended dismissal of the RPC 1.15(b), RPC 3.2, and
RPC 8.4(a), (b) and (c) charges.
The record contains clear and convincing evidence that respondent violated RPC 1. l(a),
RPC 1.3, and RPC 1.4(a) and (b). He agreed to represent the Vonderputtens and then permitted
their case to be dismissed for lack of prosecution, in violation of RPC 1.1(a) and RPC 1.3.
Moreover, he failed to communicate with his clients, in violation of RPC 1.4(a) and (b).
Although the presenter withdrew, and the special master declined to find, a violation of RPC
8.4(c), respondent misrepresented the status of the matter. As late as two and one-half years after
the complaint had been dismissed, respondent assured his clients that a settlement would be
reached within the next several months. We, thus, find a violation of RPC 8.4(c), in addition to
the admitted violations. We dismiss the charges that respondent violated RPC 1.15(b), RPC 3.2,
and RPC 8.4 and (b). There is no indication that respondent failed to safeguard funds, failed to
expedite litigation, or engaged in criminal conduct. In addition, we dismissed the RPC 8.4(a)
charge as cumulative.
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The Sherman Matter - District Docket No. VIII-02-043E
On April 29, 1998, Lue Sherman retained respondent to represent her in a personal injury
action arising after a bus door closed on her. Sherman never went to respondent’s office and,
until the ethics heating, never met him. On August 1, 2000, more than two years after he had
been retained, respondent sent interrogatories for Sherman to answer. She promptly signed and
returned them, inserting only her social security number, driver’s license and date of birth. The
other nine questions were left blank. Sherman testified, and respondent conceded, that he had not
provided any other written communications to Sherman and that most of her telephone contact
was with respondent’s staff, not respondent. According to Sherman, respondent never returned
her telephone calls.
On October 7, 2002, respondent informed Sherman by letter that her complaint had been
dismissed in February 2002, when the court granted summary judgment because Sherman’s
injuries did not meet the tort threshold. Respondent’s letter stated that the defendant’s motion
was not properly opposed due to an error on his part, and that he was filing a motion to vacate
the dismissal order and to reinstate the complaint. That motion, filed about eight months after the
entry of the order granting summary judgment, was denied. At the ethics hearing, respondent
explained that he had failed to oppose the summary judgment motion because he was
dysfunctional at the time. He adde’d that Sherman’s injuries were not sufficient to pierce the tort
threshold. Respondent conceded that when he filed the motion to vacate the dismissal order, he
had not provided Sherman with an opportunity to participate.
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Although the complaint charged respondent with failure to cooperate with disciplinary
authorities, at the hearing, the presenter withdrew that charge.
The special master determined that respondent violated RPC 1.1(a) and RPC 1.4. The
special master found that respondent’s failure to oppose the motion for summary judgment
constituted gross neglect and his failure to keep Sherman informed about the status of the case
violated RPC 1.4. He recommended dismissal of the charge that respondent failed to cooperate
with disciplinary authorities, based on the presenter’s withdrawal of that charge.
The record contains clear and convincing evidence that respondent violated RPC 1.1(a)
and RPC 1.4. He never met his client. After signing the retainer agreement on April 29, 1998,
respondent did nothing to advance the case until more than two years later, when he provided
Sherman with interrogatories that defense counsel had served. Although Sherman left most of the
questions incomplete, respondent did not meet with her or contact her to obtain additional
information. Furthermore, he neither informed her that the defendant had filed a motion for
summary judgment, nor that the motion had been granted and the case dismissed, until eight
months after the dismissal. Even when he filed the motion to vacate the dismissal, respondent
failed to provide Sherman with an opportunity to provide information or otherwise participate.
Respondent’s actions amounted to gross neglect and failure to communicate with a client.
Although we could find that respondent was also guilty of a lack of diligence, he was not
charged with a violation of RPC 1.3 and a finding of a violation of that RPC would not affect the
level of discipline to be imposed.
21
The special master properly dismissed the charge that respondent failed to cooperate with
disciplinary authorities.
The Liscinski Matter - District Docket No. VIII-02-053E
Respondent was retained to represent Andrew Kuruc, a defendant in a small claims
matter in Middlesex County. Kuruc later retained another attorney, Theodore Liscinski, to
represent him. On March 16, 2001, Liscinski asked respondent for the Kuruk file and for a
substitution of attorney. Respondent ignored that request, as well as subsequent requests dated
April 9, 2001 and May 3, 2001, in which a substitution of attorney signed by both Kuruk and
Liscinski was enclosed for respondent’s execution. On June 5, 2001, Liscinski filed a motion to
relieve respondent as counsel, which was granted on August 29, 2001. Respondent did not
oppose the motion. On September 4, 2001, Liscinski served respondent with a copy of the order,
requesting again that he turn over the Kuruk file. Respondent did not comply with that request.
On September 26, 2001, Liscinski filed a motion for turnover of the file, which was granted on
December 22, 2001. Again, respondent neither opposed the motion nor complied with the order.
On February 19, 2002, Liscinski filed a motion for an order holding respondent in contempt for
failure to comply with the turnover order. On May 10, 2002, the court entered an order holding
respondent in contempt and requiring that he turn over the Kuruk file within ten days of service
of the order.
The complaint charged respondent with gross neglect, lack of diligence, failure to
communicate with a client, and failure to cooperate with disciplinary authorities. At the ethics
22
hearing, respondent admitted that he was guilty of gross neglect, the presenter withdrew the lack
of diligence charge, and counsel made arguments to the special master concerning the failure to
communicate charge. The presenter contended that, although Liscinski was not a client, he was
acting on behalf of Kuruk, and that respondent had failed to promptly comply with reasonable
requests for information sought on behalf of a client, in violation of RPC 1.4(a). Respondent’s
counsel conceded that respondent "did not timely provide the client’s file to Mr. Liscinski when
he was requested to do so. Mr. Tunney has an obligation to provide the client’s file ....
However... it’s not a violation of communications and . . . he’s committed a professional
violation." She contended that respondent’s failure to produce the file amounted to gross neglect,
but not failure to communicate with a client because Liscinski was not a client.
In conformance with the parties’ resolution, the special master found that respondent
violated RPC 1.1(a) and dismissed the RPC 1.3 charge. Although the record does not refer to the
charge that respondent failed to cooperate with disciplinary authorities, the special master
indicated in his report that the presenter withdrew that charge as well.
The special master found that respondent’s failure to provide the file to Liscinski violated
RPC 1.4(a), stating that "Mr. Tunney had a continuing duty and obligation to cooperate and to
turn over the file so that the client could be adequately protected."
We find that respondent’s failure to execute the substitution of counsel, to reply to the
motions, to comply with the court orders, and to turn over the Kuruk file amounted to both a lack
of diligence and gross neglect. The record does not indicate when, if ever, respondent eventually
provided the file to Liscinski. However, more than one year lapsed between Liscinski’s first
23
request for the file on March 16, 2001, and the order of contempt dated May 10, 2002. In
addition, Liscinski was required to file three motions, none of which respondent opposed.
Respondent’s inaction constituted both a lack of diligence and gross neglect.
Respondent’s failure to turn over the file violated RPC 1.16(d) (failure to protect a
client’ s interests upon termination of the representation), not RPC 1.4(a). We, thus, dismissed the
charge that respondent violated RPC 1.4(a). Although respondent was not specifically charged
with a violation of RPC 1.16(d), the facts in the complaint gave him sufficient notice of the
alleged improper conduct and of the potential violation of that RPC. Furthermore, respondent’s
counsel conceded that respondent had an obligation to turn over the file to Liscinski and that his
failure to do so was a "professional violation." Thus, the record developed below contains clear
and convincing evidence of a violation of RPC 1.16(d). In light of the foregoing, we deem the
complaint amended to conform to the proofs. Rule 4:9-2; In re Logan, 70 N.J. 222, 232 (1976).
We dismiss the charge that respondent failed to cooperate with disciplinary authorities. The
presenter apparently moved for dismissal of that charge, and, in any event, respondent filed an
answer to the complaint.
Respondent’s failure to comply with the court orders requiring that he turn over the file
violated RPC 3.4(c) (failure to obey an obligation of a tribunal). He also violated RPC 8.4(d)
(conduct prejudicial to the administration of justice). Liscinski filed three motions to require
respondent to turn over the file. This waste of judicial resources was prejudicial to the
administration of justice. Although respondent was not charged with violations of RPC 3.4(c) or
RPC 8.4(d), pursuant to In re Logan, supra, 70 N.J. 222, 232 (1976), we deem the complaint
amended to conform to the proofs.
Respondent presented evidence of depression in mitigation of his unethical conduct. He
and his wife, Denise Tunney, who is also an attomey, gave the following account of the events
leading to the diagnosis. In July 2001, respondent told Denise that ethics charges were pending
against him and he did not want her to learn about them from another attorney or from reading a
legal newspaper. These are the charges that ultimately led to the imposition of a reprimand. At
that time, respondent had not answered the complaint and expected to be disbarred. According to
respondent, he was suicidal. Denise arranged an appointment with respondent’s counsel and
from there, took respondent to a friend, Dr. Thomas Nucatola, who referred respondent to a
psychiatrist, Dr. Joseph Vetrano. As seen below, respondent was prescribed medication and
continues to treat with Dr. Vetrano.
Respondent described how his depression affected his law practice, testifying that he was
not returning telephone calls or even going to his office. According to respondent, the depression
began in 1996 as a result of numerous family and personal problems. Respondent was
disappointed that he and Denise could not practice law together. After their attempt to do so in
1995 failed, Denise obtained a position with an insurance company. Earlier, in January 19941
Denise’s father was diagnosed with cancer. In August 1996, respondent’s father was hit by a car
and moved into respondent’s home to recuperate. In June 1998, respondent and Denise bought a
"handyman special." On the day of the closing, respondent’s father suffered a stroke. Although
respondent wanted to modify the house to include an addition for his father, the project turned
25
out to be too expensive, forcing respondent to sell the house. They entered into a contract to have
a house built in the same neighborhood as Denise’s sister, but before the house was finished,
Denise’s sister got divorced. Denise’s family blamed respondent for any problems with Denise’s
sister’s divorce attorney and with his fees because respondent had recommended him.
Respondent and Denise moved in with Denise’s parents until their house was completed, causing
additional stress. According to Denise, at this time, respondent was irritable and moody and did
not get along with her parents. Respondent had stopped working regularly and was not earning
money. At the time that respondent informed Denise about the ethics charges, she had
contemplated divorce. Denise acknowledged that all of the homes that they owned were in her
name only, adding that there were times when she borrowed money to pay respondent’s office
rent.
Respondent testified that he continues to see Dr. Vetrano every three months and cannot
imagine returning to his prior depressed state. He is devastated by his unethical conduct and
refused to file a bankruptcy petition, believing that he will be able to earn sufficient fees from his
law practice to pay damages to the clients he has harmed.5 Respondent expressed embarrassment
and remorse. He stated that he had made changes to his office practices, such as implementing a
database system, to manage his calendar and to keep track of deadlines.
Dr. Thomas Nucatola, a rheumatologist and respondent’s longtime friend, testified that
after Denise brought respondent’s condition to his attention, he reflected on respondent’s
behavior and realized that respondent had begun to change in 1999. Dr. Nucatola described these
Respondent did not have malpractice insurance at the time of his misconduct.
26
changes, recalling that respondent was not in his office as frequently as he had been and had
ceased all leisure activities, such as skiing, which he had previously enjoyed. According to Dr.
Nucatola, after respondent began treating with Dr. Vetrano, respondent returned to his prior
lifestyle and appeared to be functioning normally, both in his professional and personal life. Dr.
Nucatola expressed doubt that respondent would return to a depressed state because the difficulty
lies in identifying the disease; once the depression is diagnosed, treatment is monitored by
medical personnel.
Dr. Vetrano testified that in July 2001 he diagnosed respondent with a major depression.
He stated that a classic symptom of depression is the inability to perform simple tasks, which
appear to the depressed person as monumental. According to Dr. Vetrano, respondent takes two
antidepressants, Celexa and Wellbutrin. He continues to see respondent every three months and
believes respondent’s depression is under control.
In addition to medical evidence, respondent introduced evidence of his good character.
Six individuals, including five attorneys and one client, testified that respondent is honest and
has a reputation of high integrity.
Respondent’s counsel contended that a reprimand should be imposed, conditioned on
respondent practicing under the guidance of a proctor for an unspecified period of time and
further conditioned on respondent compensating the clients who suffered financial harm due to
his misconduct. Because she recognized that a suspension would likely be imposed, respondent’s
counsel asked that the suspension be as short as possible. On the other hand, the presenter
contended that, although an argument could be made for disbarment, respondent should be
27
suspended for two to three years, relying on In re Pavilonis, 98 N.J. 36 (1984), In re Mintz, 126
N.J. 484 (1992), In re Beck, 143 N.J. 135 (1996), and In re Foushee, 149 N.J. 399 (1997).
The special master recommended a two-year suspension, stating that a reduction to one
year could be justified by mitigating circumstances.
As mentioned above, following a de novo review of the record, we are satisfied that the
special master’s finding that respondent’s conduct was unethical is supported by clear and
convincing evidence. We found: (1) in the Hutt matter, respondent failed to promptly notify Hutt
of his receipt of funds to which Hutt was entitled, failed to inform him that the Jacques matter
had been settled, and misrepresented that he would disburse Hutt’s fees in several days; (2) in the
Bojko matter, respondent displayed a lack of diligence by failing to take steps to resolve the
escrow dispute; failed to keep Bojko informed of the status of the matter and to comply with his
reasonable requests for information; and misrepresented that he would file a lawsuit against the
sellers; (3) in the Castaneda matter, although we dismissed the charges in the Goldberg count, in
the Deocamp case, respondent failed to keep his client informed; exhibited gross neglect and a
lack of diligence by failing to oppose summary judgment motions and permitting the complaint
to be dismissed; and misrepresented to his client the status of the matter; (4) in the Vonderputten
matter, respondent was guilty of gross neglect and a lack of diligence when he permitted his
client’s personal injury complaint to be dismissed for lack of prosecution; he also failed to
communicate with his client and misrepresented the status of the matter; (5) in the Sherman
matter, respondent failed to oppose a motion for summary judgment and allowed his client’s
personal injury complaint to be dismissed, thereby exhibiting gross neglect; he also failed to
communicate with his client; and (6) in the Liscinski matter, respondent’s failure to execute a
substitution of counsel and to turn over his client’s file constituted gross neglect, a lack of
diligence, failure to protect a client’s interests upon termination of the representation, failure to
obey an obligation of a tribunal, and conduct prejudicial to the administration of justice. The
special master properly dismissed the charges in the Tobe matter, based on the grievant’s failure
to appear at the hearing.
Respondent’s misconduct in these six matters was serious and widespread. Indeed,
although he was not charged with a violation of RPC 1.1(b), he displayed a pattern of neglect.
His clients suffered economic harm resulting from his failure to represent them properly. He
exhibited similar conduct in the matter that led to a reprimand.
There is substantial mitigation, however. Respondent was diagnosed with depression and
is receiving medication that keeps his condition under control. His unethical conduct primarily
consisted of failing to take action, such as returning telephone calls and filing necessary
documents. As explained by Dr. Vetrano, these are classic symptoms of depression, in which
simple tasks become overwhelming. Moreover, respondent was not motivated by greed or
venality. He appeared to express sincere remorse and an interest in compensating his clients for
his wrongdoing. Respondent’s unethical conduct occurred during the same approximate
timeframe as the misconduct for which he received a reprimand. This is not a case, therefore, in
which an attorney failed to learn from his mistakes.
Misconduct on the scale presented in these matters usually results in a suspension. See,
e.g., In re Yetman, 132 N.J. 157 (1993) (three-month suspension for gross neglect, pattern of
29
neglect, lack of diligence, failure to communicate with clients, failure to comply with
recordkeeping provisions, and misrepresentation; a mitigating factor was the attorney’s
alcoholism, which was found to be causally linked to his misconduct); In re Peluso, 156 N.J. 545
(1999) (three-month suspension for gross neglect in six matters, pattern of neglect, failure to
abide by a client’s decision, lack of diligence, failure to communicate, failure to explain a matter
sufficiently to permit a client to make an informed decision, recordkeeping deficiencies, and
failure to deliver a file upon termination of the representation in one of the matters); In re Casey,
170 N.J. 6 (2001) (three-month suspension for gross neglect, pattern of neglect, failure to
communicate with a client, failure to expedite litigation and misrepresentation); In re Bosies, 138
N.J. 169 (1994)’(six-month suspension for gross neglect in three matters, pattern of neglect, lack
of diligence in three matters, failure to communicate with a client in one matter, failure to abide
by the scope of the representation in two matters, and misrepresentation in two matters); In re
Aranguren, 165 N.J. 664 (2000) (six-month suspension for gross neglect, pattern of neglect, lack
of diligence, failure to communicate, failure to protect the interests of a client upon termination
of the representation, failure to expedite litigation, misstatements of facts or failure to disclose
facts in connection with a disciplinary matter, and misrepresentation in five matters; attorney had
a prior admonition); In re Marum, 157 N.J. 625 (1999) (one-year suspension for combinations of
gross neglect, pattern of neglect, lack of diligence, failure to communicate with clients, and
misrepresentation in eleven matters).
The cases cited by the presenter were not entirely on point. In In re Pavilonis, supra, 98
N.J. 36 (1984), the attorney had been disbarred in Pennsylvania for taking the bar examination
30
on behalf of his wife; in In re Mintz, supra, 126 N.J. 484 (1992), the attorney did not cooperate
with disciplinary authorities, abandoned his clients, and failed to maintain a bona fide office; in
In re Beck, supra, 143 N.J. 135 (1996), the attorney had an extensive ethics history, including
two private reprimands, a public reprimand, two temporary suspensions and a three-month
suspension, and was guilty of lack of candor toward a tribunal, lack of truthfulness in statements
to others, unauthorized practice of law, and conduct prejudicial to the administration of justice;
and in In re Foushee, supra, 149 N.J. 399 (1997), the attorney had defaulted, thus resulting in
enhanced discipline, and previously had been temporarily suspended. All of the above cases had
factors not present here that warranted more severe discipline.
Based on the foregoing, we unanimously vote to impose a three-month suspension. If not
for evidence of respondent’s depression, a longer term of suspension would be warranted. Before
reinstatement, respondent must submit a report from a mental health professional approved by
the Office of Attorney Ethics, concluding that he is fit to practice law. Upon reinstatement,
respondent should be required to practice under the supervision of a proctor for two years. Two
members did not participate.
We further require respondent to reimburse the Disciplinary Oversight Committee for
administrative costs.
Disciplinary Review Board
Mary J. Maudsley, Chair
31
SUPREME COURT OF NEW JERSEY
DIS CIPLINAR Y REVIEW BOARD
VOTING RECORD
In the Matter of John A. Tunney
Docket No. DRB 03-350
Argued: January 29, 2004
Decided: March 26, 2004
Disposition: Three-month suspension
Members
Maudsley
Disbar,
Threemonth
Susl~ension
.Reprimand
Admonition
Dismiss
Disqualified
Did not
X
0 "Shaughnessy
X
Boylan
X
Holmes
X
LoIla
X
Pashman
X
Schwartz
X
Stanton
X
Wissinger,
X
Total:
7
2
K. DeCore
~clianne
hief Counsel